Medical marijuana still beyond reach in Maryland

Barry Considine, 60, smokes marijuana to ease the pain of post-polio syndrome, the muscle weakness that afflicts polio victims as they age and now requires him to use a wheelchair.

Barry Considine, 60, smokes marijuana to ease the pain of post-polio syndrome, the muscle weakness that afflicts polio victims as they age and now requires him to use a wheelchair. (Lloyd Fox, Baltimore Sun)

By Jean Marbella, Justin George and Erin Cox, The Baltimore Sun

Barry Considine still has to buy marijuana illegally, as he has since he first asked around a biker bar for it to help treat his post-polio syndrome. Ken Kopper still fears another possession arrest for using it to ease chronic pain resulting from a couple of car accidents.

And Gail Rand still can only watch from afar as a boy in Colorado who has the same form of epilepsy as her 4-year-old son has become seizure-free after regularly ingesting an oil derived from marijuana.

"There's a plant out there that can help my son, and he can't get it," said Rand, whose son Logan has an average of 10 seizures a day. "I'm not willing to give up. Something has to help my child."

Patients hoping to legally use medical marijuana in Maryland had appeared closer than ever last year, when state legislators approved its distribution through medical centers conducting research on the drug. But regulations have not yet been approved for the program and no hospitals have come forth to participate, leaving patients in the same position they were in before the law was passed.

"The reality is: It's not working, it's not going to work," said Del. Dan K. Morhaim, the Baltimore County Democrat who sponsored the medical marijuana bill last year.

Morhaim said that even last year, it was clear medical centers were tepid at best about committing to the program. And after discussing the issue with several institutions over the past year, he sees no sign that they're warming to the idea.

"I was hoping that they would change their minds," he said. "It's clear that they won't."

Johns Hopkins, the University of Maryland and Sinai Hospital say they're still evaluating their positions or waiting to see the state's regulations before making a final decision.

"Johns Hopkins is open to a conversation with the state about how a medical marijuana program could be implemented, but right now, it would be premature to commit to administering or participating in such a program," Kim Hoppe, a Hopkins spokeswoman said.

Another potential participant, MedStar Health, "is not considering participating in the medical marijuana program in Maryland," said spokeswoman Ann C. Nickels. She declined to elaborate.

Some powerful lawmakers suggest in private that the state push public universities to embrace their role in helping the state's sick get medical marijuana. Others plan to marshal support to rewrite the law, expanding access to the drug beyond research centers.

Morhaim, the General Assembly's only physician, expects to introduce a bill this weekallowing physicians affiliated with a hospital or university to recommend marijuana to patients — a plan that would bypass academic centers and greatly increase the number of doctors who can beome involved, he said.

Those who support medical marijuana have had an uphill battle in Maryland — in the past, Gov. Martin O'Malley has opposed measures that he said would put the state in violation of federal law. But advocates find hope in something O'Malley said at the Annapolis summit on the opening day of the legislative session — in response to a question from Rand, who had noted the "limitations" of the current law and that her son still had no access to a drug that might ease his epilepsy.

"Our hope is if there's something that's made this too cumbersome to move it forward in the context of medical marijuana, we can fix that this legislative session," O'Malley said. "If we need to fix it … we can take advantage of these next 90 days and do that."

Rand, who lives in Annapolis, is particularly interested in gaining access to a strain of marijuana known as "Charlotte's Web," which is cultivated in Colorado and used by a number of children suffering from epilepsy. It is low in THC, which produces the marijuana high, and some parents and doctors say an oil extracted from it has greatly reduced or even stopped epileptic seizures in children.

Logan's seizures can sometimes be violent, causing him to fall and injure himself as he did recently, requiring a trip to the emergency room for stitches, Rand said. Doctors have tried various anti-seizure medications, often powerful and with side effects, but only one has proved even moderately effective, she said.

According to published research, there is anecdotal evidence that marijuana can successfully reduce seizures, but more studies need to be done on the issue.

Given that research facilities in Maryland appear reluctant to participate in the state's medical marijuana program, Rand hopes lawmakers will consider other ways to get the drug to patients. "I'd like to be able to get it from a dispensary," said Rand, referring to the way other states handle medical marijuana.

For now, members of Maryland's Medical Marijuana Commission continue to work on regulations that will determine how the program would be implemented and run. A draft is expected in the coming weeks, but commission members, appointed five months ago by O'Malley, declined to discuss their proposal.

Hospitals and state research centers rely heavily on federal funds, making them wary of participating in a program to distribute a drug that remains illegal under federal law. Proponents say research into marijuana's efficacy can face multiple challenges — especially because the federal government controls the supply of marijuana that can be used in such studies.

"The hospitals don't want to take it because they're afraid that the federal funding that they receive will be taken away," said Del. Joseph Vallario, a Prince George's Democrat. He chairs a committee that has killed other bills to loosen pot laws, but he considers himself an unwavering supporter of medical marijuana.

The Obama administration has indicated that it will not prosecute federal marijuana crimes if state laws have legalized the drug's use, but that has not entirely allayed such fears.

"The federal government still has regulations about this stuff, and the hospitals have to weigh all those things to see whether they'd fall into the criteria of what they could do," said commission member Col. Harry Robshaw, chief of the Cheverly Police Department.

Eric E. Sterling, president of the Criminal Justice Policy Foundation, a private nonprofit educational organization that focuses on criminal justice issues and "failed global drug policy," said that wariness might not be warranted. The federal government has never sued a state to block a medical marijuana program since California adopted its program in 1996, he said.

Still, Carroll County State's Attorney Dario J. Broccolino, also on the commission, understands that it's uncharted territory for the state, and hospitals have a right to take a wait-and-see stance. "I can understand their timidity because it's the great unknown. They're not going to commit to anything until all the regulations are published."

As a result, those the Maryland law was intended to help remain stymied.

"For the day-to-day life of a patient in Maryland, nothing has changed with this law," said Michael Liszewski, policy director for Americans for Safe Access, a group that advocates for medical marijuana.

Advocates knew the passage of Maryland's law was not going to make the drug immediately available — legislative aides estimated setting up the program would take until fiscal 2016. And while the advocates would have preferred a more expansive measure, Liszewski said it was clear they would have to settle for something less than ideal.

Twenty states and the District of Columbia have a medical marijuana program, but Maryland is among a minority that do not allow dispensaries and the only one that ties it to research activities, according to the National Conference of State Legislatures. A medical marijuana user in Maryland can still be arrested for possession, but showing medical necessity can be used as a defense in court to avoid conviction.

Medical marijuana proponents take heart in polls that show increasing support for their cause — a Goucher College poll in November found 90 percent of Marylanders back medical marijuana. There is a greater comfort level with the drug, with some who now use it medicinally having once used it recreationally.

Considine, 60, takes "several tokes" in the morning and later in the day for the muscular weakness and fatigue that comes with post-polio syndrome.

"My condition is all about conserving energy," said the Halethorpe resident.

Stricken with polio before he was 2, Considine was able to live a largely normal life, working first in restaurants and later in land title companies until 1998, when he developed post-polio syndrome.

He had used pot recreationally as a younger man, less so after he married and had two children who are now in their 20s. Having retired, he starts his day with coffee and "three tokes," which help the pain and spasms of his afflicted muscles.

The former chef still cooks his family's meals, a once simple task that saps his strength. "My back and legs are shot when I'm done," Considine said, and smoking more pot later in the day helps him get the sleep that his doctor says is the best medicine for his condition.

He would smoke more, but the cost is prohibitive so he limits himself to about $75 to $150 worth of marijuana a month.

In Annapolis, the debate has broadened this session and includes two other pot proposals. One would legalize marijuana, regulate it and tax it like alcohol; it is considered unlikely to pass this year. A second would decriminalize the possession of small amounts.

Advocates for medical usage say that while they have no problem with legalization of the drug for any purpose, such a measure alone wouldn't address all their needs. For example, if marijuana were subject to an excise tax, like alcohol, those who use it for medical purposes would have to pay the same as those using it recreationally.

Sen. Bobby Zirkin, a Baltimore County Democrat who is pushing to make marijuana possession a civil offense without jail time, said the other proposals still don't resolve the problems with Maryland's medical marijuana system.

"The fix on medical marijuana is making sure that patients can actually get it," Zirkin said.

"Of course, you don't want someone who has cancer thrown into jail. The problem with our medical marijuana program is that patients can't get it, and you shouldn't be sending them or their family members to drug dealers to go get it."

Kopper, 42, of Catonsville fears being arrested again for possession of the marijuana used to treat lingering back, joint and muscular pain stemming from a couple of car accidents — including one in which a fully loaded cement truck rear-ended him.

A 2003 state law allows those arrested for marijuana possession to claim medical necessity for the drug, and he has used a letter from a doctor in court. Having such a letter, though, doesn't prevent him from being arrested or tried again.

"I cried for two hours straight," he said of being given probation before judgment for one incident. "It could definitely have gone another way."

Kopper said using marijuana keeps him from having to use more powerful and addictive drugs such as opiates to manage his pain.

Tyler Kutner, 20, also has a doctor's letter but has not had to use it. Still, Kutner, who uses marijuana to treat the muscle spasticity that comes with cerebral palsy, said Maryland's current laws don't protect medicinal users.

As "patients, as people who are buying off the street, that leaves us very vulnerable," said Kutner, a freelance writer who lives in College Park.

Kutner uses pot and practices yoga to help loosen muscles. With marijuana back on the General Assembly's to-do list, and with one candidate for governor, Del. Heather Mizeur, supporting the drug's legalization, Kutner said, "we're going to be lucky if we can squeak anything through that has a shred of resemblance to what we want to see."

Some medical marijuana advocates fear their cause will get lost as the focus turns toward legalization or decriminalization.

But Sen. Jamie Raskin, a Montgomery County Democrat leading the charge to legalize pot, said that regardless of what happens on that front, "we need to fix the medical marijuana law. Decriminalization leaves the drug dealers in control of the market."

Similarly, Senate President Thomas V. Mike Miller, who supports legalization, says the state needs to get its medical marijuana program right first.

Morhaim's preference is to focus on medical, rather than recreational, users. The discussion on legalization and decriminalization — as well as civil rights, drug cartels and unfairly incarcerating people — should wait.

"In this war on drugs," Morhaim said, "we have to get the sick and dying off the battlefield."

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